Appendix — Bagnell v. United States

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

WALTER "FRENCHY" BAGNELL,

Defendant-Appellant.

No. 81-5384

June 28, 1982.

Appeal from the United States District

Court for the Southern District of Florida.

Before VANCE, HATCHETT and ANDERSON

Circuit Judges.

VANCE, Circuit Judge:

Appellant, Walter Bagnell, challenges

his conviction under the federal obscenity

statutes. After trial by jury, Bagnell was

convicted under two counts charging use of

A-1

a common carrier for the interstate transpor-

tation of obscence material, in violation

of 18 U.S.C. Sec. 1462,2/ and two counts

charging interstate transportation or obscene

material for purposes of sale and distribut-

ion, in violation of 18 U.S.C. Sec. 1465.2/

1/

18 U.S.C. Sec. 1462 provides in pertinent

part: .

Whoever brings into the United States,

or any place subject to the jurisdiction there-

of, or knowingly uses any express company

or other common carrier, for carriage in

interstate or foreign commerce

(a) any obscene, lewd, lascivious, or filthy

book, pamphlet, picture, motion-picture film,

paper, letter, writing, print, or other matter

of indecent character; or

Whoever knowingly takes from such

express company or other common carrier

any matter or thing the carriage of which

is herein made unlawful--

Shall be fined not more than $5,000

or imprisoned not more than five years, or

both, for the first such offense and shall

be fined not more than $10,000 or imprisoned

not more than ten years, or both, for each

such offense thereafter.

2/

18 U.S.C. Sec. 1465 provides in pertinent

part:

(Continued)

A-2

W

On appeal, Bagnell asserts numerous errors,

none of which is meritorious. We therefore

affirm *

In early 1977 the Federal Bureau of

Investigation (FBI) began a nationwide in-

vestigation into violations of the federal

obscenity laws, focusing upon shipments of

2/ (Continued)

Whoever knowingly transports in inter-

state of foreign commerce for the purpose

of sale or distribution any obscene, lewd,

lascivious, or filthy book, pamphlet, picture,

film, paper, letter, writing, print, silhouet-

te, drawing, figure, image, cast, phonogragh

recording electrical transcription or other

article capable of producing sound or any

other matter of indecent or immoral charac-

ter, shall be fined not more than $5,000

or imprisoned not more than five years, or

both.

3/

21 Bagnell was fined $5,000 and sentenced

to prison for eighteen months under the first

count of the indictment. He was placed on

probation for a total of five years on the

remaining three counts, subject to the condi-

tion that he did not distribute sexually ex-

plicit material to Florida during his proba-

ionary period.

A-3

obscence materials to the Miami, Florida

area. As part of the investigation, FBI Agent

Patrick J. Livingston formed a corporation,

Gold Coast Specialties, from which he pur-

ported to operate a mail order pornography

business. Livingston traveled throughout

the country to arrange for shipments of por-

nographic materials to the Miami based Gold

Coast Specialties from various producers and

distributors. On September 7, 1977 Livingston

was introduced to Bagnell in Los Angeles,

California by Paul Howard, an owner of sev-

eral adult book stores and massage parlors

in Tampa, Florida who had previously pur-

chased pornography from Bagnell. During

this meeting, Livingston and Bagnell discus-

sed the pornography industry, their con-

nections with it across the country, and

the attendant difficulties with lav en-

forcement efforts and debt collection.

Specifically, Bagnell mentioned his efforts

A-4

to avoid detection for shipping pornography

to Tulsa, Oklahoma and his problems with

a customer in Baltimore, Maryland who owed

him $34,000.

Bagnell and Livingston met again

the next day. At that time Livingston pro-

posed to purchase some of Bagnell's movies,

and Bagnell readily agreed to the sale of

fifty movies. The only thing about which

there was any debate was the price, which

they quickly set at $5.50 for each film.

Livingston received the films in Miami four

days later, 4/ and paid Bagnell by check

when the two met at Paul Howard's home

in Tampa on September 15, 1977.

Bagnell and Livingston met once more,

on October 11 in Chicago, Illinois. Livings-

ton's check for the fifty movies had bounced,

4/ The September 12, 1977 shipment con-

tained ten copies each of five different

movies from the "Sexual World" series. Only

two of the movies were the subject of the

criminal charges eventually brought against

Bagnell. P

A-

so Livingston repaid Bagnell in cash. At the

same time Livingston arranged to purchase

more movies from Bagnell for $5.00 each.

On December 14, 1977 Livingston received

in Miami a shipment of four movies from

Bagnell. Unlike the first shipment, which

consisted of several heterosexual movies,

this second shipment contained two copies

each of two different films portraying

homosexual acts.2/

Bagnell had no further contacts

with Livingston, but he was not charged

with any crime for over a year. On February

11, 1980, however, a federal grand jury

for the southern district of Florida indicted

Bagnell and forty-four other persons for

conspiracy to violate the federal obscenity

5/

7 The titles of these two movies were

Jeff and Frank and Dale and Ed, both from

the "Intimate Moments" series. Both movies

were introduced into evidence and formed the

basis for two of the four counts of his indict-

ment.

A-6

Statutes and numerous parallel substantive

violations. This original indictment was

eventully superseded and the grand jury

issued sixteen separate indictments. One

of these superseding indictments charged

Bagnell individually with four offenses

arising out of the two movie shipments

to Miami. A jury subsequently convicted

Bagnell and this appeal followed.

I. VENUE

Bagnell first contends that venue

did not properly lie in the southern district

of Florida because the government's decision

to prosecute him in that district constituted

improper forum shopping. Specifically,

he contends that the government chose

to have him ship materials to the southern

district of Florida because it believed

that a jury applying the community standards

of that district would probably find that

the materials were obscene. He asserts

A-7

that such forum shopping by the government

violates his right to due process. Assuming

arguendo that Bagnell's characterization of the

government's conduct as forum shopping is

accurate, his argument evinces a misunder-

standing of the principles of venue and due

process and therefore must fail.

The right of criminal defendants

to be tried in the state and judicial district

in which the alleged crime occurred is guar-

anteed by article III of and the sixth amend-

ment to the United State Constitution as well

as Rule 18 of the Federal Rules of Criminal

Procedure. United States v. Davis, 666 F.2d

195, 198-99 (5th Cir. 1982). It is well estab-

lished that the use of common carriers to ship

obscene materials and the interstate shipment

of such materials are continuing offenses that

occur in every judicial district which the

material touches. See Reed Enterprises v. Clark,

278 F.Supp.372, 380 (D.D.C.1967) (three judge

A-8

court), aff'd mem., 390 U.S. 457, 88 S.Ct.

1196, 20 L.Ed.2d 28 (1968). Consequently,

there is no constitutional impediment to the

government's power to prosecute pornography

dealers in any district into which the material

is sent. Id. Cf. Hamling v. United States,

418 U.S. 87, 106, 94 S.Ct. 2887, 2901, 41 L.Ed.

2d 590 (1974) ("distributors of allegedly ob-

scene materials may be subjected to varying

community standards in the various federal

judicial districts into which they transmit the

materials"). The venue question, then, becomes

one of legislative intent. Travis v. United

States, 364 U.S. 631, 636-37, 81 S.Ct.358, 361-

362, 5 L.Ed.2d 340 (1961). Specifically, did

Congress intend to allow the prosecution of

pornography distributors in the district to

which they transmit their products? This ques-

tion must be answered with a resounding yes.

Section 1462 proscribes the use of

common carriers to distribute obscene material,

A-9

while section 1465 prohibits the transportation

of such materials through interstate commerce.

By their very terms, these statutes describe

offenses within the venue provisions of 18

U.S.C. Sec. 3237(a), which declares that any

offense “involving the use of the mails, or

transportation in interstate commerce“ is a

continuing offense that may be prosecuted in

any district in which the crime took place. S/

67

18 U.S.C. Sec. 3237 (a) provides:

(a) Except as otherwise expressly pro-

vided by enactment of Congress, any offense

against the United States begun in one dis-

trict and completed in another, or committed

in more than one district, may be inquired

of and prosecuted in any district in which

such offense was begun, continued, or com-

pleted.

Any offense involving the use of the

mails, or transportation in interstate or for-

eign commerce, is a continuing offense and,

except as otherwise expressly provided by

enactment of Congress, may be inquired of

and prosecuted in any district from, through,

or into which such commerce or mail matter

moves.

See generally United States _v. Bullock, 451

F.2d 4, 889 (5th Cir. 1971) (discussing

proper venue for offense involving illegal

interstate transportation of stolen postal mon-

ey orders).

A-10

United States v. Peranio, 645 F.2d 548, 551

(6th Cir. 1981). Venue was therefore proper

in the southern district of Florida because it

is the district in which the materials were re-

ceived. See United States v. Walker, 559 F.2d

365, 372 (5th Cir. 1977); United States v.

Slepicoff, 524 F.2d 1244, 1249 (5th Cir. 1975),

cert denied, 425 U.S. 998, 96 S.Ct. 2215, 48

L.Ed.2d 824 (1976); United States v. McManus,

535 F 2d 460, 463-64 (8th Cir. 1976), cert

denied, 429 U.S. 1052, 97 S.Ct. 766, 50 L.Ed.2d

769 (1977) 2/

1

Any doubts that may have existed

about Congress! intent to treat federal obscen-

ity violations as continuing offenses were

put to rest with the 1958 amendments to 18

U.S.C. Sec. 1461, 1462. Congress amended

these statutes for the express purpose of over-

ruling a tenth circuit decision holding that

section 1461 was not a continuing offense,

see United States v. Ross, 205 F.2d 619 (10th

Cir. 1953), and thereby ensured that venue

would lie "not only at the place at which

the objectionable matter is mailed, but also

at the place of address or delivery, or in

any judicial district through which such mat-

(Continued)

A-11

Bagnell argues that the Supreme Court's

disposition of Blucher v. United States, 439

U.S. 1061, 99 S.Ct. 823, 59, L.Ed.2d 27 (1979),

compels a contrary conclusion. He contends that

Blucher stands for the proposition that the due

process clause precludes forum shopping of any

sort in obscenity cases, thus overriding general

venue principles which would otherwise allow

his trial to be held in the southern district

of Florida. We disagree. In Blucher the defend-

ant was convicted of obscenity charges after

egregious forum shopping by the local prosec-

utors. The tenth circuit affirmed the convic-

tion, stating that venue in pornography cases

was "subject to the creative zeal of federal

7/ (Continued) .

ter is carried." H.R. Rep.No. 1614, 85th Cong.,

2d Sess. 2 (1958). See also Conf.Rep.No. 2624,

85th Cong., 2d Sess. 3-4 (1958); United States

v. McManus, 535 F.2d 460, 463-62 (8th Cir.

scussing impact of 1958 amendments on

venue in obscenity prosecutions), cert. denied,

1 ,

A-12

enforcement officer." United States v. Blucher,

581 F.2d 244, 245-46 (10th Cir. 1978). While

a petition for certiorari on the forum shopping

point was pending before the Supreme Court, the

Solicitor General moved to dismiss the indictment

as contrary to an internal Justice Department

policy regarding venue in obscenity prosecu-

tions. The Supreme Court subsequently vacated

the conviction without comment and ordered the

indictment dismissed. Blucher v. United States,

439 U.S. at 1061, 99 S.Ct. at 823.

It is clear that the Supreme Court's

disposition of Blucher was not a decision on

the merits of the venue claim, but was merely

a response to the Solicitor General's motion.

See Thompson v. United States, 444 U.S. 248,

249-50, 100 S.Ct. 512, 513-514, 62 L.Ed.2d 457

(1980) (per curiam) (citing Blucher as an ex-

ample where the Court has “responded to re-

quests by the Government. by granting

certiorari and vacating the judgments"). Con-

A-13

sequently, the summary action of the Supreme

Court in Blucher has no precedential value for

the specific venue issue presented in this case.

Indeed, Bagnell's due process argument has

been foreclosed by the decision in Hamling v.

United States, 418 U.S. at 87, 94 S.Ct. at 2887.

In Hamling the Supreme Court specifically held

that it was constitutionally permissible to sub-

ject defendants in obscenity prosecutions to

varying community standards of the various

judicial districts into which they transmit

obscene material. Id. at 106, 94 S.Ct. at 2901.

We agree with the tenth circuit that at a mini-

mum, prosecutors may elect to bring obscenity

charges against a defendant in either the dis-

trict of dispatch or the district of receipt with-

out running afoul of the due process clause.

See United States v Blucher, 581 F.2d at 245-

46; accord, United States v. Peraino, 645 F.2d

at 551. Indeed, prosecution in the district of

receipt is eminently reasonable in veiw of the

A-14

fact that it is the recipient community that

suffers the deleterious effects of pornography

distribution. United States v. McManus, 535

F.2d at 464.87

It is equally unavailing for Bagnell

to assert that his prosecution violated an en-

forceable justice Department policy regarding

venue. The former fifth circuit has repeatedly

held that justice Department policies such as

the one allegedly involved in this case are

merely matters relating to the internal opera-

tions of the justice Department and create no

87

We reserve judgment, however, on the

case in which an obscenity prosecution is

brought in a judicial district through which

allegedly pornographic material passes en

route to another destination. Although prose-

cution in this transit district would seem

to be allowed by the liberal venue provision

of section 3237, that case would be more

problematic in light of both the legistative

history of the 1958 amendments to the federal

obscenity statutes and the principles under-

lying the due process clause. See United

tates v. nus, 535 F.2d 460, 463-64 (8th

Cir. 1976). cert. denied, 429 U.S. 1052, 97

S.Ct. 766, 50 L.Ed.2d 769 (1977); Unite

mates. L 243 F.Supp. 160, 176 (N.D.

lowa 1965), rev'd on other grounds, 389 F.2d

200 (8th Cir. 1968). 4 46

enforceable right on the part of a criminal de-

fendant. See, eg-, United States . McInnis,

601 F.2d 1319, 1323 (5th Cir. 1979), cert.

denied, 445 U.S. 962, 100 S.Ct. 1649, 64 L.Ed.

2d 237 (1980); United States v. Nelligan, 573

F.2d 251, 255 (Sth Cir. 1978); Fry v. United

States, 569 F.2d 303, 304 (Sth Cir. 1978). See

also United States v. Caceres, 440 U.S. 741,

99 S.Ct. 1465, 59 L.Ed.2d 733 (1979). It is thus

solely within the province of the Justice De-

partment to determine whether an internal

policy against forum shopping in obscenity

cases should bar prosecution in a given case.

| Bagnell also contends that the dis-

trict court abused its discretion in denying

his motion for a change of venue to the central

district of California pursuant to Rule 21(b)

of the Federal Rules of Criminal Procedure. We

disagree. A criminal defendant has no right

to be tried in the place of his domicile, United

States v. Walker, 559 F.2d at 372, and the de-

A-16

fendant's concerns about the expense and in-

convenience of being tried away from home are

ordinarily of little relevance to a motion for

a change of venue. United States v. Sanchez,

508 F.2d 388, 393-95 (Sth Cir.) cert. denied,

423 U.S. 827, 96 S.Ct. 45, 46 L.Ed.2d 44

(1975). Additionally, we note that in light of

the "contemporary community standards require-

ment of Miller v. California, 413 U.S. 15, 93

8. Ct. 2607, 37 L.Ed.2d 419 (1973) it is logical

to try a defendant lin a federal obscenity

case] in the district to which he allegedly

mailed obscene matertals.“ United States v.

Slepicoff, 524 F.2d at 1249. Indeed, it is the

district of receipt that suffers the brunt of the

harms associated with the distribution of por-

nography and is most in need of protecting it-

self by the application of its community stand-

ards to the materials in question. See United

States v. Luros, 243 F.Supp. 160, 176 (N.D.

lowa 1965), rev'd on other grounds, 389 F.2d

A-17

200 (8th Cir. 1968); H. R. Rep. No. 1614, 85th

Cong., 2d Sess. 6 (1958); 104 Cong.Rec. 8991-

92 (May 19, 1958) (remarks of Reps. Keating

and Reuss). Courts should thus exercise re-

straint in granting Rule 21(b) motions in ob-

scenity prosecutions. See United States v.

McManus, 535 F.2d at 464. At an irreducible

minimun, obscenity defendants must demonstrate

substantial unfair prejudice flowing from a

denial of such a motion before we will overturn

the district court's action. See United States

v. Walker, 559 F.2d at 372. There was no such

showing here, so we will not disturb the dis-

trict court's ruling.

II. EXPERT TESTIMONY

At trial, the district court allowed Arthur

R. Green, pastor of the Christ Metropolitan

Community Chruch in Miami, to appear as an

expert witness for the prosecution. Pastor Green

is homosexual and his congregation is predo-

minantly homosexual as well. He testified to

A-18

the Miami homosexual community's standards

regarding pornography and he opined that the

average ‘person in that community would find

that the two homosexual films in question in

this case appealed to the prurient interest.

Bagnell contends that while expert testimony

regarding the homosexual community standards

about pornography was required in this case,

Pastor Green was not qualified to give such

expert testimony. He argues further that he

was prejudiced because the improper testimony

was imbued with "an aura of special reliab-

ility."

Initially, we reject the contention

that expert testimony was necessary in this

case. It is clear that hard core pornography

can, and does, speak for itself, United States

v. Wild, 422 F.2d 34, 36 (2d Cir. 1969), cert.

denied, 402 U.S. 986, 91 S.Ct. 1644, 29 L.Ed.2d

152 (1971), and that a jury generally can de-

termine whether allegedly pornographic material

A-19

is obscene simply by viewing it. Pinkus v.

United States, 436 U.S. 293, 302, 98 S.Ct. 1808,

1814, 56 LEd. 2d 293 (1978); Ginzburg v. United

States, 383 U.S. 463, 465, 86 S.Ct. 942, 944

16 L.Ed2d 31 (1966). Cf. Jacobellis v. Ohio,

378 U.S. 184, 197, 84 S.Ct. 1676, 1683, 12

L.Ed.2d 793 (1964) (Stewart, J., concurring)

("I know it when I see it ..."). Consequently,

there is no constitutional need for expert“

testimony on behalf of the prosecution, or for

any other ancillary evidence of obscenity, once

the allegedly obscene material itself is placed

in evidence." Kaplan v. California, 413 U.S.

115, 121, 93 S.Ct. 2680, 2685, 37 L.Ed.2d 492

(1973) (citing Paris Adult Theatre I v. Slaton,

413 U.S. 49, 56, 93 S.Ct. 2628, 2634, 37

L.Ed.2d 446 (1973). The Supreme Court has re-

cognized, however, that there may be circum-

stances in which expert testimony is necessary

in obscenity prosecutions. The Court specifical-

ly reserved judgment "on the extreme case ...

A-20

where contested materials are directed at such

a birarre deviant group that the experience

of the trier of fact would be plainly inadequate

to judge whether the material appeals to the

prurient interest." Paris Adult Theatre I v.

Slaton, 413 U.S. at 56 n.6, 93 S.Ct. at 2634

n.6. This exception to the general rule regard-

ing expert testimony in obscenity prosecutions

does not apply to this case. We are unwilling

to say that expert testimony is constitutionally

mandated in all obscenity prosecutions in-

volving materials depicting homosexual acts.

Such materials are not so far removed from

the realm of recognizable sexuality as to

render jury evaluations inappropriate" and re-

quire expert testimony. United States v. Thom-

as, 613 F.2d 787, 794 (10th Cir.), cert.

denied, 449 U.S. 888, 101 S.Ct. 245, 66 L.Ed.2d

114 (1980).

While expert testimony in ob-

scenity cases is not required, it clearly is

A-21

permissible. Hamling v. United States, 418 U.S.

at 108, 94 S. Ct. at 2902; United States v.

1

Slepicoff, 524 F.2d at 1247-48; United States

v. One Reel of Film, 481 F.2d 206, 209 n.3

(Ist Cir .1973). The district court in obscenity

cases has "wide discretion in its determination

to admit and exclude evidence, and this is

particulary true in the case of expert test-

mony." Hamling X. United States, 418 U.S. at

108, 94 S.Ct. at 2902. We will not overturn the

district court's decision to admit expert test-

imony unless the district court abused is dis-

cretion. Bauman v. Centex Corp., 611 F.2d

1115, 1120 (5th Cir. 1980).

In this case, the district court

might very well have excluded Pastor Green's

testimony, as well as the testimony of the other

expert witnesses. See United States v. Groner,

479 F.2d 577, 587 (5th Cir.) (en banc) (Ains-

worth, J., concurring) (expert testimony in ob-

scenity cases can be helpful, but it may

A-22

i

*

confuse rather than aid the trier of fact),

vacated, 414 U.S. 969, 94 S.Ct. 278, 38 L.

Ed.2d 218 (1973) (remanded for reconsideration

in light of Miller v. California, 413 U.S. at

15, 93 S.Ct. at 2607), adhered to, 494 F.2d

499 (5th Cir.), cert. denied, 419 U.S. 1010,

95 S. Ct. 331, 42 L.Ed.2d 285 (1974). Nonethe-

less, we cannot say that the district court

abused its discretion in allowing Pastor Green

to testify. As adviser and counselor to a pre-

dominantly homosexual congregation in Miami,

Pastor Green was intimately familiar with the

social and sexual mores of at least a large

part of Miami's homosexual community. Con-

sequently, his testimony probably provided the

jury with a better understanding of the obs-

cenity issue in this case than it otherwise

would have had. That he moved to Miami eight

months after the films arrived there does not

make his testimony inadmissible. The temporal

relationship between Pastor Green's arrival in

A-23

Miami and the shipment of the films is not so

attenuated as to render his testimony irrele-

vant, so this fact goes to the weight and not

the admissibility of the evidence. See Barnes

v. General Motors Corp., 547 F.2d 275, 278

(5th Cir. 1977). Finally, Pastor Green's test-

imony did not prejudice Bagnell. Bagnell's

counsel adequately cross-examined Pastor Green

and revealed the shortcomings of his testimony.

Additionally, Pastor Green's testimony was

buttressed by another expert witness who was,

if anything, an even more credible witness.

III. ENTRAPMENT

At trial, uncontroverted evidence showed

that FBI Agent Livingston first contacted

Bagnell in Los Angeles and that Livingston took

the lead in proposing to purchase some of

Bagnell's movies. The evidence also showed

that Bagnell readily agreed to sell the movies

and that the only discussion regarding the sale

concerned the price and merchandising of the

A-24

movies in question. Finally, while the evidence

showed that Bagnell had previously shipped

Fei movies throughout the country, there

was no evidence to show that he had ever dealt

with purchasers in the southern district of

Florida or that he had ever had any contacts

at all with that cistrict. At the close of the

case, the district court did not deliver an

entrapment instruction and the case went to

the jury. During its deliberations, the jury

sent a note to the judge asking if it could

consider the entrapment defense that Bagnell's

attorney had argued in his opening statement.

The judge replied that entrapment was not in

issue and that they could not consider it.

Bagnell argues that the judge's decision

was erroneous. He contends that the govern-

ment's case presented enough evidence of en-

trapment to warrant an instruction to the jury.

Bagnell argues that the judge's error was not

harmless and therefore warrants reversal. He

A-25

asserts that evidence of his predisposition to

ship the movies elsewhere does not show that

he was predisposed to ship to Miami and that

the jury could infer from the evidence that he

had been improperly induced to send the

materials to the southern district of Florida.

He argues that the jury's note further demon-

strated the existence of sufficient evidence to

support an entrapment instruction. We reject

this argument.

Entrapment occurs when the government

induces the commission of a crime by one not

predisposed to commit it. United States ».

Humphrey, 670 F.2d 153, 154 [1982] (11th Cir.

1982); United States v. Webster, 649 F.2d 346,

348 (5th Cir. 1981) (en banc). Entrapment is

an affirmative defense that focuses on the defen-

dant's pre-disposition to commit the crime in

question. United States v. Webster, 649 F.2d at

348. As entrapment is an affirmative defense,

the defendant must come forward with evidence

“that the government's conduct created a sub-

A-26

stantial risk that the offense would be committed

by a person other than one ready to commit it.“

United States v. Dean, 666 F.2d 174, 180 (Stn

Cir. 1982); Pierce v. United States, 414 F.2d

163, 168 (Sth Cir.), cert. denied, 396 U.S. 960,

90 S.Ct. 435, 24 L.Ed.2d 425 (1969). It is clear

that the government's evidence can provide this

requisite evidentiary base for an entrapment

instruction, Sears v. United States, 343 F.2d

139, 143 (5th Cir. 1965), and that failure to

give an instruction when the defendant has met

his burden is reversible error. United States

v. Timberlake, 559 F.2d 1375, 1379 (5th Cir.

1977).

An entrapment instruction would

not have been proper in this case. That the

government first suggested or solicited the ill-

egal shipments does not constritute entrapment.

The defendant must show "mild persuasion or

coercion” on the part of the government before

he is entitled to an entrapment instruction.

A-27

United States v. Humphrey, 670 F.2d at 156

(quoting United States v. Hill, 626 F.2d 1301,

1304 (Sth Cir. 1980). Bagnell has failed to

meet this burden. The only showing made here

is one of initial government contact and

Bagnell's enthusiastic willingness to sell the

movies in question.

IV. FIRST AMENDMENT

It is undisputed that the first

amendment does not protect obscene material

from regulation or suppression by the govern-

ment. See Roth v. United States, 354 U.S. 476,

483-85, 77 S.Ct. 1304, 1308-1309, 1 L.Ed.2d

1498 (1957); Red Bluff Drive-In, Inc. v. Vance,

648 F.2d 1020, 1026 (5th Cir. 1981), cert.

denied, ---U.S.---, 102 S.Ct. 1264, 71 L.Ed.2d

453 (1982). Although this basic proposition has

been long established, it was not until the

landmark decision in Miller v. California, 413

U.S. at 15, 93 S.Ct. at 2607, that any firm

standards were developed to guid the determin-

A-28

ation of obscenity, In Miller the Supreme Court

established a three-part obscenity test:

(a) whether “the average person, apply-

ing contemporary community standards"

would find that the work, taken as a

whole, appeals to the prurient interest

«++; (b) whether the work depicts or

describes, in a patently offensive way,

sexual conduct specifically defined by

the applicable state law; and (c)

whether the work, taken as a whole,

lacks serious literary, artistic, political

or scientific value.

Id. at 24, 93 S.Ct. at 2614 (citations omit-

ted.2/ In applying the first two parts of the

9/

Miller was a case involving a state

obsenity prosecution. The Miller test, however,

applies to federal obscenity prosecutions as

well. See ted. St v „ 413 U.S.

139. 145, e 80 t. 4, . 7 L.Ed.2d

513 (1973) (prosecution under 18 U.S.C. Sec.

(1462). Cf. Marks v. United States,430 U.S.

188, 194-96, 97 S.Ct. 550, 592-955, 51 L. Ed. 2d

260 (1977) (Miller standards not to be applied

retroactively to prosecution under 18 U.S.C.

Sec. 1465).

A-29

Miller test the trier of fact is required to

utilize contemporary community standards to

determine whether the allegedly pornographic

material appeals to the prurient interest and

whether it depicts sexual activity in a patenty

offensive manner. In applying the third part

of the Miller test to determine whether the

materials possess serious valve, however, the

trier of fact is not supposed to rely upon con-

temporary community standards when evaluating

the evidence. Smith v. United States, 431 U.S.

291, 300-01 97 S.Ct. 1756, 1763-1764, 52 L.Ed.2d

324 (1977). Miller delineates a constitutional

test, however, and its application is not left

to the unbridled discretion of the trier of fact.

The appellate court is obligated to make an

independent review of the material in question

and an independent evaluation of the material

in light of the Miller criteria. Miller v.

California, 413 U.S. at 25, 93 S.Ct. at 2615;

Penthouse International, Ltd. v. McAuliffe, 610

A-30

r

F. 2d 1353, 1363 (5th Cir.), cert. denied, 447

U.S. 931, 100 S.Ct. 3031, 65 L.Ed.2d 1131

(1980). With these principles in mind, we turn

to Bagnell's specific constitutional objections.

Bagnell first argues that the district

court failed to instruct the jury on the proper

Miller test. Specifically, he complains of a jury

instruction that told the jury to evaluate the

films according to the community standards of

“the southern district of Florida, particulary

Dade County.“ Bagnell contends that the

Supreme Court has never sanctioned the use

of a community standards instruction based on

a geographic area smaller than a judicial dis-

trict and that such an instruction is too rest-

rictive and subject to prosecutorial abuse. He

claims specific prejudice from the instruction

because it excluded Broward County, ° which

contains Fort Lauderdale, from the relevant

community for purposes of the obscenity ana-

lysis.

A-31

The former fifth circuit has re-

jected this argument. In United States v.

Groner, 479 F.2d at 577, the former fifth cir-

cuit held that in “obscenity cases under fed-

eral law ‘the community’ should logically

enbrace that area from which the jury is drawn

and selected." Id. at 583. Although Groner was

decided before the decision in Miller, nothing

in Miller or any subsequent case affects the

vitality of the Groner holding regarding the

relevant community for purposes of obscenity

alalysis. In Hamling v. United States, 418 U.S.

at 87, 94 S.Ct. at 2887, the Supreme Court

stated that the Miller test envisioned no pre-

cise geographical area in determining the re-

levant community standards. The Court stated,

however, that the purpose of the Miller test

was "to permit a juror sitting in obscenity

cases to draw on knowledge of the community

++» from which he comes in deciding what con-

clusion ‘the average person, applying contem-

A-32

porary community standards' would reach in

a given case." Id. at 105, 94 S.Ct. at 2901.

Groner comports with this mandate. It ailows

the jury to apply first-hand knowledge to the

Miller test, thus obviating the need for expert

testimony, while providing federal courts with

flexibility to adopt efficient local procedures

for jury selection. See also United States v.

Thomas, 613 F.2d at 792. The jury in this case

was drawn from Dade County alone. A7 Accord

ingly, the jury instruction based upon the

10 /

Se The jury System Improvements Acts

of 1978, 28 U.S.C. Sec. 1861-1876, declares

that juries be "selected at random from a

fair cross section of the community in the

district or division wherein the court con-

venes." 18 U.S.C. Sec. 1861. Furthermore,

division“ is defined to include "in judicial

districts where there are no statutory divi-

sions, such counties, parishes, or similar

political subdivisions surrounding the places

where court is held as the district court plan

shall determine." 28 U.S.C. Sec. 1869(e).

The southern distvict of Florida con-

tains no statutory divisions, but instead is

required by statute to hold court in five

cities, including Miami. 28 U.S.C. Sec. 89.

The jury selection plan for the southern dis-

(Continued)

A-33

community standards of Dade County complies

with our requirement of symmetry between the

*

jury pool and the relevant community. A/

10 / (Continued)

trict of Florida provides that jurors in trials

held at Miami shall be drawn from Dade and

Collier Counties. In this case, the judge

determined that Collier County residents should

be exclued from the venire. Although this

decision may indicate technical noncompliance

with the 1978 Act, the defendant failed to

challenge this decision, and thereby waived

any statutory objections to the jury selection.

See 28 U.S.C. Sec. 1867(a). We note that even

if the judge had fully complied with the

requirements of the 1978 Act, no juror would

have been drawn from Broward County. Con-

sequently, Bagnell's contention that he was

prejudiced because the judge excluded Broward

County from the relevant community is com-

pletely inapposite in light of Groner's focus

upon the jury pool for purposes of determining

the relevant community.

11/

i The State of Florida has d ermined

that the relevant community for purposes

of a state obscenity prosecution is the local

county. Johnson v. State, 351 So.2d 10, 11

(Fla.1977). onsequently, any argument

by Bagnell as to lack of notice concerning

the proper community for first amendment

purposes is unava..ing.

The net result of the holdings in

Groner and in the instant case is as follow:

the trial court in a federal obscenity prose-

cution does not commit error if it defines

(Continued)

A-34

Bagnell also argues that the four

films forming the basis for his conviction are

constitutionally protected. Essentially, he urges

that the films are not obscene because none

of them “deals with minors, with animals, with

cruelty, masochism, sadism, excretion, de-

fecation, or anything else that might disqualify

[them] for First Amendment protection." Miller

cannot be so circumscribed, however, as to

apply only to this rather restrictive litany of

possible sexual practices. The Supreme Court

determined that a case-by-case evaluation of

allegedly obscene material was appropriate

precisely because such a list is impossible to

draft. Additionally, the various degrees of

tolerance thoughout the country would make

11/ (Continued)

the relevant community as the area from

which the jury is to be drawn according

to the local jury selection plan, or the area

in which the ofense was committed if, as

in this case, the jury is actually drawn

from the area without objection by the

defendant.

A-35

eee

such a list unresponsive to local needs. Miller

v. California, 413 U.S. at 27-28, 30-32, 93 S.

Ct. at 2616-2617, 2618-2619.

Applying Miller to the four films,

we have no doubt whatever that they are obs-

cene and may form the basis for Bagnell's

conviction. Each fiim is devoted exclusively

to the explicit depiction of various sexual

practices. None of the films has a plot or any

dialogue,nothing, in fact, save continual inter-

course. In the first film a man and a woman

engage in oral, anal, and genital copulation,

while the second film depicts two women and

a man engaging in oral and genital copulation

as well as the women engaging in lesbian acts.

Both the third and forth films depict nothing

but homosexual acts involving various types

of oral copulation, anal copulation, and mutual

masturbation. There can be no doubt that the

average person applying contemporary com-

munity standards would find that each of the

A-36

films appeals to the prurient interest and de-

picts sexual conduct in a patently offensive

manner. “Similarly, each film is devoid of any

value, let alone any serious value, aside from

its intended commercial purpose to cater to a

prurient interest in sex. Each movie is a non-

stop assault on the sensibilities of the viewer

and manages only to debase sexual activity

with its numbing explicitness.

We conclude that each film sat-

isfies each part of the Miller test and accord-

ingly falls outside the ambit of the first

amendment. We have, in addition, determined

that the district court did not commit rever-

sible error in any of its rulings in this

case. 27 There being no constitutional impedi-

12/

Bagnell raises three other contentions

on appeal which can be dismissed in short

order. He contends that the twenty-six month

delay between the occurrence of the crimes

charged and his indictment was prejudicial

and requires reversal. For pre-indictment

delay to warrant reversal, however, the

defendant must show that the delay was

motivated by an _ improper prosecutorial

(Continued)

A-37

ment to Bagnell's conviction or any trial error,

we affirm his conviction under all four counts

of the iridictment.

AFFIRMED

12/ (Continued)

purpose and resulted in prejudice to the

defendant. United States v. Durnin, 632 F.2d

1297, 1299 (5th Cir. 1980). Bagnell has failed

to show an improper motive on the part of

the government. Indeed, delay so as to allow

a national investigation to proceed unhin-

dered is manifestly proper. Bagnell's con-

clusory assertions of prejudice are also

unconvincing.

Bagnell also argues that the district

court improperly restricted voir dire. Cur-

iously, he correctly concedes that this issue

is completely foreclosed by Smith v. United

States, 431 U.S. 291, 308, t.

1767, 52 L.Ed.2d 324 (1977). Finally, Bagnell

contends that a mistrial should have been

declared when the prosecutor asked a witness

whether Bagnell had offered to sell “animal

films." He asserts that there was no basis

for the question and that its implications

prejudiced him. While we agree that the

prosecutor acted improperly in this instance,

the question does not require reversal. Any

prejudice that might have resulted was dis-

pelled when the witness testified that Bagnell

did not sell “animal films." Additionally,

the district court promptly gave an adequate

curative instruction.

A-38

lane

IN THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Filed

September 21, 1982

No. 81-5384

UNITED STATES OF AMERICA,

Plaintiff-Appellee

versus

WALTER "FRENCHY" BAGNELL,

Defendant-Appellant.

APPEAL FROM

THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

ON PETITION FOR REHEARING AND SUGGESTION

FOR REHEARING EN BANC (Opinion June 28,

Before VANCE, HATCHETT and ANDERSON,

Circuit Judges. PER CURIAM:

1.

The Petition for Rehearing is DENIED and

no member of this panel nor Judge in regular

active service on the Court having requested

that the Court be polled on rehearing en banc

(Rule 35, Federal Rules of Appellate Proce-

dure; Eleventh Circuit Rule 26). the sugges-

tion for Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

/s/ ROBERT S. VANCE

United States Circuit Judge

2.